Parliamentary watchdog takes Zimbabwe Electoral Commission to court

Parliamentary watchdog, Veritas Zimbabwe, has taken the Zimbabwe Electoral Commission to court and its two cases will be heard tomorrow.

In the first case Veritas is seeking to open up voter education which is currently restricted to the commission.

It argues that this restriction is inconsistent with the freedom of expression which is guaranteed under the country’s constitution.

In the second case Veritas is seeking the court to decide on the definition of transparency because it is not defined in the country’s constitution.

It sets out 20 things that the Zimbabwe Electoral Commission has to fulfill for the coming elections to be declared transparent.

Veritas argues that if its case succeeds, the general election will be more likely to be judged free, fair and transparent.

Zimbabweans will have greater trust in the Zimbabwe Electoral Commission and Zimbabwe will avoid the Kenyan situation in which the Supreme Court annulled the election as being not transparent as provided for by the Kenyan Constitution.

Although 46 percent of Zimbabweans trusted the Zimbabwe Electoral Commission somewhat to a lot, only 30 percent in the urban areas did so while the majority of those who supported the electoral body, 55 percent, were from rural areas, according to the recent poll by Afrobarometer.

ELECTION WATCH 23/2018

16th June 2018

Two Veritas Court Cases on Elections to be Heard on Monday 18th June

in High Court, Harare

This coming Monday, 18th June, the High Court in Harare is due to hear two cases brought by Veritas to improve the conduct of the coming general election.

Both cases raise constitutional issues affecting the Electoral Act and the Zimbabwe Electoral Commission [ZEC]’s functions under the Constitution and the Electoral Act.

1st Case 10 am

Restricted Voter Education vs. Freedom of Expression

The court papers for the case are available on the Veritas website [link] and [link]

Veritas v ZEC, the Minister of Justice, Legal and Parliamentary Affairs and the Attorney-General.

As explained in Election Watch 15/2018 of 25th May, Veritas is bringing the case as a public interest case. Although the case was filed last year, Veritas had to make an urgent application to have it heard as a matter of urgency. Time is running short before these elections. But there is still a great deal of voter education to be done now – and if the case is won it will benefit later elections too.

This application was explained in Election Watch 15/2018 of 25th May [link]. It seeks an order declaring section 40C of the Electoral Act in part unconstitutional on the ground that it is inconsistent with the freedom of expression to which all Zimbabweans are entitled under the Constitution [this includes freedom “to seek, receive and communicate ideas and other information”]. It also cites unfair discrimination and infringement of political rights.

Section 40C gives ZEC a virtual monopoly over all voter education by subjecting everyone else, except political parties, to unduly stringent conditions, including but not limited to:

the requirement that it must be in accordance with a course or programme approved by ZEC

can only be done by an organisation having voter education as its mandate in the organisations constitution.

the documents and other materials used to provide voter education must be given to ZEC for its scrutiny at least 28 days before they are used, together with the names, addresses and citizenship of the people who are to give it and details of the sources of funding for its provision.

Veritas contends that, bearing in mind that there are penalties written into the Electoral Act for distributing inaccurate information, that taken as a whole, the restrictions are not fair, reasonable, necessary and justifiable in an open and democratic society based on openness, justice, equality and freedom. Under section 86 of the Constitution they are, therefore, unconstitutional.

Also, on a practical level ZEC does not have the resources to educate the whole population about the election process and unless churches, businesses, colleges, other organisations and interested citizens are allowed to disseminate information on elections many people will be ill-informed.

Note: Although the results of the April/May Afrobarometer survey came after Veritas took the case, it revealed that 72% of Zimbabweans think [incorrectly] that voters must show their BVR slips in order to vote.

The order that Veritas is seeking from the court is that:

“ … it is declared that section 40C(1)(g) and (h) and section 40C(2) of the Electoral Act are inconsistent with sections 56, 61 and 67 of the Constitution of Zimbabwe and are hereby struck down”.

This Monday, 18th June, the High Court in Harare is due to hear two cases brought by Veritas to improve the conduct of the coming general election. Both cases raise constitutional issues affecting the Electoral Act and the Zimbabwe Electoral Commission [ZEC]’s functions under the Constitution and the Electoral Act.

2nd Case 2.30 pm

To Enforce ZEC’s Duty of Transparency

The court papers for the case are available on the Veritas website [link] and [link]

Veritas v ZEC and Attorney-General

Transparency means openly and without secrets

The Constitution does not define “transparency”. It is for the courts to decide what “transparency” means in the context of ZEC’s responsibility for conducting elections. In this case Veritas invites the court to give meaning to the concept of “transparency” to ensure that ZEC’s operations in the run-up to the coming elections are “done in an open way without secrets”.

The more ZEC carries out its functions in an open way without secrets the more likely it is to be able to deliver a credible election.

The court order Veritas asks for goes into great detail as to what ZEC’s duty of transparency means in relation to specific aspects of its responsibilities. In essence the court is asked to declare that ZEC is legally obliged to make available for public scrutiny far more information about how it conducts its operations that it has been willing to do up to now.

Relevant provisions of Constitution and Electoral Act

The application is founded on sections 3(2)(g), 156(a), 233(d) and 239(a) of the Constitution and section 3 of the Electoral Act.

Section 3(2)(g) lists “transparency, justice, accountability and responsiveness” as one of the principles of good governance that bind the State and all institutions, including ZEC; section 156(a) obliges ZEC to ensure that the method of voting is “simple, accurate, verifiable and transparent”; section 233(d) obliges all independent Commissions including ZEC, to “promote transparency and accountability in all public institutions”; and section 239(a) states one of ZEC’s functions is to ensure that all elections are conducted “efficiently, freely, fairly, transparently and in accordance with law”.

The order sought

Note: Veritas had to seek an urgent hearing for this case. The delay in getting a hearing for this case means some of the deadlines sought by Veritas have already passed. So now there is all the more urgency for ZEC’s full disclosure of information immediately.

Veritas seeks an order compelling ZEC to comply with its constitutional duty to administer a transparent general election and to promote transparency in all its operations.

Specifically, Veritas requests that ZEC be declared to have a legal duty to:

Disclose all of its standard operating procedures, processes, policies and internal manuals which relate to the conduct of elections and make them available for public scrutiny at least three months before the election;

Publish in advance of the election the criteria for screening and selecting persons seconded to ZEC’s during an election, and for other electoral processes such as registration of voters;

Publish the names of persons seconded to ZEC as well as the designations or roles in the electoral process and the government departments from which they were seconded as soon as reasonably possible after any such secondment and in all circumstances in advance of the election;

Ensure that no members of the Security Services are seconded to it;

Publish the names, designations and government departments of any persons to whom ZEC delegates, directs, or asks to assume any voter registration functions;

Publish the names, designations and government departments of any persons to whom voter registration functions were not delegated to for the reason that the Civil Service Commission withheld its consent;

Retain direction and control over any member of the Civil Service to whom it delegates its voter registration functions;

Produce and publish a manual, in advance of the election, for any person who is to act as an election officer during an election to ensure that the election is conducted in an efficient and transparent manner;

Promptly publish the names of persons who have been removed from the voters roll and the reasons for such removal as soon as they have been removed as soon as reasonably possible after their removal from the voters roll and in all circumstances at least three weeks before an election;

Publish, in advance of the election, the standard operating procedures relating to compilation, collation and transmission of results from polling stations.

Publish, in advance of the election, the standard operating procedures relating to the sealing and storage of ballot boxes, voters rolls, ballot papers, tallies of votes and any other electoral papers, which must ensure all such electoral papers are sealed in such a way that they can be made available for the purpose of any electoral petition, in terms of the electoral law;

Publish information relating to its intended voter education exercise including a schedule of the date, time and location of where it will conduct voter education as well as the publication online of all voter education materials that the First Respondent intends to use for its voter education programs;

Ensure that election agents are identifiable on Election Day by way of providing lanyard identity (ID) cards to election agents to be worn on Election Day;

Publish the names of any person, body, organ, agency or institution, belonging to or employed by the State, who provides assistance to the Commission in order to protect its independence, integrity and dignity in terms of section 10A(3) of the Electoral Act as well as the precise nature of the assistance;

Not to delegate any of its functions regarding the logistics or any other aspect of its mandate to administer elections;

Not to delegate any of its mandate to the National Logistics Committee (NLC) unless all members of the NLC have been seconded to ZEC in terms of section 10 and are under its direction and control;

Publish in advance of the election the names, roles and government departments of all personnel that make up the NLC or any other State organ that provides any assistance to the Respondent and the nature of the assistance;

Publish in advance of the election a clear explanation of the legal and institutional mandate of the NLC including details about its role in every aspect of the administration of the election and how the First Respondent will maintain oversight, direction and control over the NLC;

Publish all standard operating procedures, processes, policies and internal manuals that relate to the NLC.

Produce and publish the First Respondent’s criteria and methodology for monitoring media houses as well as its standard operating procedures, processes, policies and internal manuals relating to the monitoring of media houses.

If this case succeeds:

the general election will be more likely to be judged free fair and transparent.

citizens will have greater trust in ZEC

a Kenya situation in which the Supreme Court annulled the election as being not transparent as provided for by the Kenyan Constitution